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§ 293. “Shall be Appointed.”

The appointment of Justices is an Executive Act, to be performed by the Governor-General with the advice of the Federal Executive Council. No particular mode of appointment by the Governor-General in Council is prescribed; but the usual, if not universal, mode of appointing colonial Judges is by letters patent under the royal sign manual. (Todd, Parl. Govt. in Col., p. 829.) The sub-section dealing with appointment makes no provision as to tenure; but sub-section 2, prescribing the only mode of removal, shows that the tenure is during “good behaviour,” with special restrictions as to the mode by which misbehaviour or incapacity is to be proved and adjudicated on. “The legal effect of the grant of an office during ‘good behaviour’ is the creation of an estate for life in the office. Such an estate is terminable only by the grantee's incapacity from mental or bodily infirmity, or by his breach of good behaviour. But, like any other conditional estate, it may be forfeited by a breach of the condition annexed to it— that is to say, by misbehaviour.” (Todd, Parl. Govt. in England, p. 857.) This liability to forfeiture is, of course, subject to the provisions as to proof and procedure in the next sub-section. It seems that this section can only be construed as vesting in the Governor-General in Council the appointment of Justices to whom an ascertained salary is payable by law at the time of their appointment. (Buckley v. Edwards [1892], App. Ca. 387.) That was a case decided under the Supreme Court Judges Act, 1858 (N.Z.). Sec. 2 of that Act provided that the Supreme Court of New Zealand should consist of a Chief Justice, “and of such other Judges as His Excellency, in the name and on behalf of Her Majesty, shall from time to time appoint.” Sec. 6 provided that “a salary equal at least in amount to that which, at the time of the appointment of any Judge, shall be then payable by law, shall be paid to such Judge so long as his patent or commission shall continue and remain in force.” The Constitution Act of New Zealand contained a provision that it should not be lawful for the General Assembly to diminish the salary of any Judge during his continuance in office. Lord Herschell, in delivering the judgment of the Privy Council, quoted this provision in the Constitution, and said (p. 394):—“It is manifest that this limitation of the legislative power of the General Assembly was designed to secure the independence of the Judges. It was not to be in the power of the colonial Parliament to affect the salary of any judge to his prejudice during his continuance in office. But if the Executive could appoint a judge without any salary, and he needed to come to Parliament each year for remuneration for his services, the proviso would be rendered practically ineffectual, and the end sought to be gained would be defeated. It may well be doubted whether this proviso does not by implication declare that no judge shall thereafter be appointed save with a salary provided by law, to which he shall be entitled during his continuance in office, and his right to which could only be affected by that action of the New Zealand legislature which is excluded by the Imperial Act.” Apart from this, it was held that a reading of the whole of the New Zealand Act showed that the legislature did not contemplate the


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appointment of a judge to whom there was no salary payable by law. The principle of the decision, as well as the strong dictum of Lord Herschell quoted above, seem to be entirely applicable to the appointment of justices under this Constitution.

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